2010 Ct. Sup. 20525
No. DBCV-08-4008461-SConnecticut Superior Court Judicial District of Danbury at Danbury
October 25, 2010
RULING ON MOTION TO STRIKE (#124.00)
MICHAEL G. MARONICH, Judge.
On May 11, 2010, the plaintiffs, Carl Glatzel, Jr., and David Glatzel, filed the operative complaint in this matter in seven counts. The allegations, as pleaded and underlying all of the counts, are as follows. The plaintiffs are brothers. During their childhood, particularly between 1979 and 1982, David was beset with behavioral problems, learning disabilities and mental illness. During that time the defendant, Lorraine Warren, who was a “paranormal investigator,” looked into and investigated the Glatzel family, including David and Carl, Jr. Warren, “speculating that supernatural forces caused . . . David Glatzel’s symptoms,” published an account of her experience with the Glatzel family to the defendant, Gerald D. Brittle, who authored a book titled The Devil in Connecticut. The book was initially published by Bantam Books in 1983. The book contained the following false and defamatory subject matter: “that David Glatzel was possessed by demons and that Carl Glatzel, Jr., was influenced by demonic forces into committing assaults and batteries on members of the Glatzel family and others.” The events as recounted in the book were a “fictionalized account of David and Carl Glatzel’s past lives” by Warren and Brittle, even though Warren and Brittle advertised the book as an “accurate, non-fictional account of defendant Warren’s observations.” Since the initial publication of the book Carl Jr., and David have assumed “respectable roles in society.” The book was republished by the defendant, iUniverse Incorporated, in 2006 and sold to readers throughout the United States and Europe. The defendants have “unreasonably and seriously interfered with the plaintiffs’ interest in not having their private affairs known to others.” The alleged incidents described in the book have “interfered with [the plaintiffs’] right to privacy” and is “highly offensive to [the plaintiffs].” The defendants published the book “in reckless disregard as to the falsity of statements in the book” and the plaintiffs have suffered “ridicule, embarrassment, vexation and humiliation, as well as loss of potential earnings.”
On August 19, 2010, the defendant, iUniverse Incorporated, filed a CT Page 20526 motion to strike the first, second, third, fourth, fifth and sixth counts of the complaint. The defendants Brittle and Warren, by notice dated October 15, 2010, have joined that motion.
“The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted.” (Internal quotation marks omitted.)Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188
(2003). The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
AS TO THE FIRST COUNT:
The plaintiffs’ first count purportedly sounds in “invasion of privacy.” The defendants challenge the legal sufficiency of this count, arguing that the plaintiffs have failed to specify upon which of the four recognized causes of action in Connecticut grouped under “invasion of privacy” their claim is based. “[T]he law of privacy has not developed as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone. [W.] Prosser, Torts (4th Ed. 1971) § 117, p. 804. The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts § 652A  as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other’s name or likeness; (c) unreasonable publicity given to the other’s private life; or (d) publicity that unreasonably places the other in a false light before the public.” (Internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127-28, 448 A.2d 1317
The plaintiffs claim that they have “alleged enough factual allegations to support a claim of invasion of privacy under each category.” “Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them . . . The purpose of a complaint or counterclaim is to limit the issues at trial, and such pleadings are calculated to prevent surprise.” (Internal quotation marks omitted.) Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 414, 867 A.2d 841 (2005). The plaintiffs would leave the defendants, and this court, to pick each of the four CT Page 20527 alternative theories or causes of action under invasion of privacy and parse the complaint to search for a match between the various factual allegations and the appropriate legal theory of recovery. For this reason, the court finds the plaintiffs’ first count legally insufficient.
Moreover, were the court inclined to attempt to read an appropriate theory of recovery into the plaintiffs’ claim, the first count must still fail. First, appropriation of another’s name or likeness provides an avenue of recovery for a plaintiff “when his name or picture, or other likeness, has been used without his consent to advertise the defendant’s product, or to accompany an article sold, to add luster to the name of a corporation, or for other business purposes.” W. Prosser W. Keeton, Torts (5th Ed. 1984) § 117, p. 852. The court cannot find the allegations of the first count sufficient to support recovery under this theory. Second, as to unreasonable intrusion upon the seclusion of another, “[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” 3 Restatement (Second), Torts § 652B, p. 378 (1977). “This is said to consist of intentional interference with another’s interest in solitude or seclusion, either as to his person or to his private affairs or concerns.” W. Prosser W. Keeton, supra, § 117, p. 854. The plaintiffs’ complaint fails to allege an intrusion, actual or otherwise, and that such intrusion would be offensive to a reasonable person.
Third, as to unreasonable publicity given to another’s private life, three requirements must be met, “(1) the disclosure of the private facts must be a public disclosure . . . (2) the facts disclosed to the public must be private facts and not public ones; and (3) the matter made public must be one which would be highly offensive and objectionable to a reasonable person of ordinary sensibilities.” W. Prosser W. Keeton supra, § 117, pp. 856-57. The plaintiffs’ complaint admits that all of the information republished by the defendants in 2006 was previously made public through the book’s original publication by Bantam Books in 1983. Thus, there is no disclosure of private facts. Finally, with regard to the fourth of the invasion of privacy causes of action, false light in the public eye, “a false light invasion of privacy occurs if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed . . . This form of invasion of privacy protects one’s interest in not being placed before the public in an objectionable false light or false position, or in other CT Page 20528 words, otherwise than as he is . . . The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true . . . and (2) is such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position.” (Citations omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 131. The plaintiffs’ complaint fails to allege that the publication would be highly offensive to a reasonable person.
The court finds the allegations legally insufficient to support recovery under any of the four categories of invasion of privacy. The defendants’ motion to strike the first count is GRANTED.
AS TO THE SECOND COUNT:
The plaintiffs’ second count sounds in libel. The defendants move to strike this count, asserting lack of legal sufficiency for two reasons. First, the subject matter of the book, The Devil in Connecticut concerns the supernatural and demonic possession. Such matters cannot be proven objectively true or false, and thus are matters of opinion. Second, an inquiry into the allegations would entail an excessive entanglement into religious and theological questions, in violation of the establishment clause of the first amendment to the United States Constitution.
The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.)Sullivan v. Lake Compounce Theme Park, Inc., supra, 277 Conn. 117. Reading the second count of the plaintiffs’ complaint in this light, the plaintiffs have alleged not only that the allegations of demonic possession were false but also that the accounts of assaults and batteries perpetrated by David and Carl Glatzel, Jr., were false or “fictionalized” as well. “To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff’s reputation suffered injury as a result of the statement.” Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). The court finds the allegations of the plaintiffs’ second count legally sufficient. The defendants’ motion to strike the second count is DENIED.
AS TO THE THIRD COUNT:
The plaintiffs’ third count sounds in intentional infliction of CT Page 20529 emotional distress. As the basis for this count, the plaintiffs incorporate the allegations of their first two counts and add the additional allegations that the severe emotional distress resulting to the plaintiffs was the result of the extreme and outrageous conduct of the defendants who should have known such was the likely result of their acts.
“In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Whether a defendant’s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim `Outrageous!’ . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.” (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000). “[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress.” (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
This court cannot find the republication of the book, The Devil in Connecticut, which was previously published and has been in the public CT Page 20530 domain since 1983, to meet the test of extreme and outrageous conduct. The defendant’s motion to strike the third count is GRANTED.
AS TO THE FOURTH COUNT:
The plaintiffs’ fourth count sounds in negligent infliction of emotional distress. As the basis for this count the plaintiffs incorporate the allegations of their first two counts and add the additional allegations that “defendants should have realized that their conduct involved an unreasonable risk of emotional distress and that distress . . . might result in illness and bodily harm,” that the “defendants’ conduct created an unreasonable risk of causing the plaintiffs emotional distress,” that the “plaintiffs’ emotional distress was foreseeable and severe enough that it might result in illness and bodily harm,” and finally that the “defendants’ conduct was the cause of plaintiffs’ distress.”
“[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.” (Internal quotation marks omitted.)Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005). To prevail on a claim of negligent infliction of emotional distress, a plaintiff must prove the following elements: “(1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff’s distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the plaintiff’s distress.” Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
As to the first and second elements, they “essentially [require] that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants’ conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants’ conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable.” (Internal quotation marks omitted.) Larobina v. McDonald, supra, 274 Conn. 410.
The court finds that the fourth count of the plaintiffs’ complaint does little more than recite the generic language provided by the Supreme Court in Carrol. There are no specific facts alleged pertaining to David CT Page 20531 and Carl Glatzel’s distress and thus, it is impossible to tell whether it could be reasonable, given the defendant’s conduct. “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. In this case, the complaint states legal conclusions because it lacks any substantive facts particular to the Glatzels. Allowing such allegations to survive a motion to strike would essentially render Connecticut’s fact pleading requirements irrelevant. The defendants’ motion to strike the fourth count is GRANTED.
AS TO THE FIFTH COUNT:
The plaintiff’s fifth count is brought under the provisions of General Statutes § 42-110b(a) et seq., the Connecticut Unfair Trade Practices Act (CUTPA), which provides in relevant part: “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” “[I]n determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of [a violation of CUTPA].” (Internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 644, 804 A.2d 180
(2002). The court finds the allegations of the plaintiffs’ claim legally insufficient to support a cause of action grounded in CUTPA. The defendants’ motion to strike the fifth count is GRANTED.
AS TO THE SIXTH COUNT:
The plaintiff’s sixth count is brought under a theory of unjust enrichment. Unjust enrichment is a quasi-contractual remedy where there exists between the parties no right to recover in contract. “The right of recovery for unjust enrichment is equitable, its basis being that in a given situation it is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense the plaintiff . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) CT Page 20532 that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (Citations omitted; internal quotation marks omitted.)Polverari v. Peatt, 29 Conn.App. 191, 200-01, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992). The facts as pleaded in this count do not support recovery based on a theory of unjust enrichment. The defendant’s motion to strike the sixth count is GRANTED.
CT Page 20533